Suriyadi Halim Omar JCA:

[1] This appeal was allowed with costs by this panel, and we thereupon had set aside the Mareva injunction ordered by the High Court against the defendant, hereinafter referred to as the appellant. We now recap the facts.

[2] By a Contract of Service dated 16 August 2002 the plaintiff (hereinafter referred to as the respondent), was employed as a General Manager in the appellant company, which is a subsidiary of Menk Apparatebau GmbH of German, with a salary of RM18,000 per month together with a month's contractual bonus. He was also entitled to a monthly entertainment allowance of RM4,500, accident insurance coverage of RM864,000, medical insurance coverage of RM3,000, hospitalization and surgical insurance premium of RM17,482.87 with Allianz Worldwide Care, profit sharing of 1% on the company's audited annual profit and the use of a company car, inclusive of toll and petrol.

[3] Amongst the terms of the contract were that the employee-employer relationship shall end at the month ending upon the respondent reaching the age of 63 or upon his claim of pension of occupational disability or invalidity. The respondent had further averred that the appellant's representative ie, one Mr. Otto Karl Gross had repeatedly affirmed that his employment with the appellant was secure and will continue as long as the appellant continued to generate profits. The respondent commenced employment with the appellant on 1 October 2002. Later the appellant had his employment pass extended for a maximum period of five years from 9 February 2006 to 16 January 2011.

[4] Disgruntlement surfaced when on 22 June 2006 the respondent was served with a notice, also dated the same day, notifying him that the Contract of Service would be terminated upon the expiry of three months period ie, on 30 September 2006. At that time, the respondent was only 49 years old and going by the terms of the contract, he still had a 14 good years left to serve.

[5] The respondent commenced a suit ie, Civil Suit MT-22-19-2007 on 19 January 2007 in the High Court at Johor Bahru against the appellant for damages of RM4,335,064.43, for losses suffered by him for the period between October 2006 until 23 August 2019, or damages to be assessed with interests. On 19 January 2007, the respondent filed an application, as per encl. 4, for a Mareva injunction over all the assets of the appellant to the extent of RM4.5 million. On 30 January 2007 he succeeded in obtaining an ex parte injunction against the latter.

[6] On 9 February 2007, the appellant filed an application to set aside the ex parte Mareva injunction order. On 26 March 2007 the learned judge heard the respondent's application of encl. 4 for the Mareva injunction inter parte together with the setting aside application.

[7] Having heard the matter the learned judge allowed the respondent's application for the Mareva injunction. He had concluded as per his judgment that:

i. the respondent had successfully proven a good arguable case. He authored that the serious question in the nature of the contract of service being a long-term one, and whether a breach of it had taken place, and required to be addressed by a full-blown trial, was the foundation of a good arguable case; and

ii. whether German or Malaysian law applied in this case, also fell within the realm of question of fact, which could only be determined at trial, hence establishing a good arguable case;

iii. no fortification was required to fortify his undertaking, on this issue the learned judge had alluded to Allen v. Jambo Holdings [1980] 2 All ER 502 CA in support of that stand, where an undertaking was not required of a poor plaintiff. This case was also referred to in Seema Development Sdn Bhd v. Mah Kim Chye & Anor, [1998] 1 CLJ 174.

[8] The appellant being dissatisfied with the decision had thereupon filed this appeal. The appellant's main complaints centered on the ground that the Court had:

1. incorrectly equated the identification of a ser